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Justice Douglas and the Death Penalty: A Demanding View of Due Process

NCJ Number
American Journal of Criminal Law Volume: 20 Issue: 1 Dated: (Fall 1992) Pages: 135-161
S Smith
Date Published
27 pages
This analysis of the evolution of the opinions of Justice William O. Douglas concerning capital punishment concludes that the changes in Douglas's views did not reflect inconsistency; instead, he focused increasingly on the process that led to such a severe punishment.
Close examination of Douglas's opinions reveals that Douglas did not view a death penalty as inherently unconstitutional. However, he viewed the process leading to the imposition of capital punishment as highly suspect. Thus, as the issues moved away from focusing on the punishment itself and toward focusing on the process by which it was imposed, Douglas moved from voting to uphold convictions to voting to reverse them. Douglas did not so much desire the reversal of a death sentence as much as he valued an unwavering and demanding procedure to ensure that the most severe of sentences were not meted out unfairly. His handling of the death penalty was similar in many ways to his handling of all criminal cases in that he applied a demanding standard whenever a person's liberty was at issue. Thus, he focused intensely on the constitutional guarantees of due process and equal protection and the guarantee against cruel and unusual punishment. Although it is not clear how he would have voted on subsequent cases, his approach to capital punishment clearly differed from that of Justices Brennan and Marshall and seems closer to those of Stewart and White in Furman. Footnotes (Author summary modified)